Brody Mining, LLC v. Secretary of Labor, MSHA

Read the official release (fmshrc.gov)

Plain-English summary

Brody Mining challenged MSHA's revised pattern-of-violations rule and the withdrawal orders issued after its pattern notice. Chief Judge Robert J. Lesnick held that the Commission lacked jurisdiction to review the notice itself but could review the resulting enforcement orders and consider challenges to the underlying regulation. He found the revised rule consistent with section 104(e), properly promulgated, and not impermissibly retroactive when applied using Brody's earlier S&S citations. He also treated MSHA's screening criteria as nonbinding policy rather than a separate legislative rule requiring notice and comment. Brody's summary-decision motion was denied, the Secretary's motion was granted, and the Commission later affirmed the ruling while the merits of the individual orders remained for adjudication.

Decision snapshot

• Governing provisions: 30 U.S.C. § 814(e); 30 C.F.R. §§ 104.1 and 104.2
• Outcome: The pattern-notice docket was dismissed for lack of jurisdiction, Brody's summary-decision motion was denied, and the Secretary's motion was granted on the rule challenges.
• Subsequent review: The Commission affirmed this ruling and remanded in weva-2014-82-r-commission-2.
• Key point: The Commission may review pattern-based withdrawal orders and regulatory defenses even though the Mine Act does not authorize a direct contest of the pattern notice itself.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA
AVE., N.W., SUITE 520N

WASHINGTON, DC 20004‑1710

TELEPHONE:
202-434-9958 / FAX: 202-434-9949

January 30, 2014

BRODY MINING, LLC,

Contestant

v.

SECRETARY OF LABOR

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA),

Respondent

CONTEST PROCEEDINGS

Docket No. WEVA 2014‑82‑R

Order No. 9003242; 10/28/2013

Docket No. WEVA 2014‑83‑R

Order No. 7166788; 10/28/2013

Docket No. WEVA 2014‑86‑R

Order No. 4208892; 10/29/2013

Docket No. WEVA 2014‑87‑R

Order No. 4208893; 10/29/2013

Docket No. WEVA 2014‑97‑R

Order No. 7166790; 11/04/2013

Docket No. WEVA 2014‑151‑R

Order No. 9003246; 11/07/2013

Docket No. WEVA 2014‑161‑R

Order No. 9004638; 11/12/2013

Docket No. WEVA 2014‑190‑R

Order No. 4208898; 11/14/2013

Docket No. WEVA 2014‑191‑R

Order No. 7166793; 11/18/2013

Docket No. WEVA 2014‑192‑R

Order No. 4208899; 11/19/2013

Docket No. WEVA 2014‑193‑R

Order No. 9005720; 11/20/2013

Docket No. WEVA 2014‑221‑R

Order No. 8155306; 11/26/2013

Docket No. WEVA 2014‑244‑R

Order No. 9005722; 12/03/2013

Docket No. WEVA 2014‑284‑R

Order No. 8154092; 12/05/2013

Docket No. WEVA 2014‑285‑R

Order No. 7166798; 12/09/2013

Docket No. WEVA 2014‑447‑R

Order No. 7166805; 01/15/2014

Docket No. WEVA 2014‑448‑R

Order No. 7166806; 01/15/2014

Docket No. WEVA 2014‑449‑R

Order No. 7166807; 01/15/2014

Docket No. WEVA 2014‑450‑R

Order No. 7166808; 01/15/2014

Docket No. WEVA 2014‑451‑R

Order No. 8154104; 01/15/2014

Docket No. WEVA 2014‑452‑R

Order No. 9005729; 01/13/2014

Docket No. WEVA 2014‑453‑R

Order No. 9005731; 01/13/2014

Docket No. WEVA 2014‑454‑R

Order No. 9005732; 01/14/2014

Docket No. WEVA 2014‑455‑R

Order No. 9005733; 01/14/2014

Docket No. WEVA 2014‑456‑R

Order No. 9005735; 01/15/2014

Docket No. WEVA 2014‑457‑R

Order No. 9005736; 01/15/2014

Docket No. WEVA 2014‑479‑R

Order No. 7166815; 01/23/2014

Docket No. WEVA 2014‑480‑R

Order No. 7166816; 01/23/2014

Docket No. WEVA 2014-81-R

Notice No. 7129154

Docket No. WEVA 2014-452-R

Brody Mine No. 1

Mine ID 46‑09086

ORDER

Appearances:   R.
Henry Moore, Michael T. Cimino, Benjamin McFarlane, Jackson Kelly, PLLC, for
Contestant

Robert S. Wilson, Office of the Regional
Solicitor, U.S. Department of Labor, for Respondent

Before:            Chief Judge Robert J. Lesnick

These consolidated proceedings are
before me under section 105(d) of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 815(d)
(the Mine Act or Act).[1] Brody Mining
LLC (Brody) has contested several orders issued to it by the Secretary of Labor’s Mine Safety and Health
Administration (MSHA) pursuant to an October 24, 2013 notice of a pattern of
violations of mandatory health or safety standards under section 104(e) of the
Act, 30 U.S.C. § 814(e).
On November 27, 2013, Brody filed a Motion for Summary Decision under Rule 67
of the Commission’s
Procedural Rules, 29 C.F.R. § 2700.67.
On December 10, 2013, the Secretary filed a Motion for Partial Summary Decision
and Opposition to Brody Mining’s
Motion for Summary Decision. For the reasons set forth below, I DENY
Brody’s motion and GRANT
the Secretary’s
motion.

As a preliminary matter, I note
that on October 30, 2013, Brody notified the Secretary that it was contesting
the Pattern of Violations (POV) Notice No. 7219154 issued to Brody. This
contest was docketed at the Commission as Docket No. WEVA 2014‑81‑R. The Commission,
however, lacks the necessary jurisdiction to adjudicate Brody’s contest of the POV
notice. As noted in Rushton Mining Co., “[t]he
Commission is an agency created under the Mine Act with certain defined and
limited administrative and adjudicative powers.”
11 FMSHRC 759, 764 (May 1989). Under the Mine Act, for example, the Commission
and its judges have “authority
to assess all civil penalties provided in [the] Act.” 30 U.S.C. § 820(i).
Under the Act and the Commission’s
Procedural Rules, 29 C.F.R. Part 2700, Commission judges have the authority to
adjudicate contests of citations, orders, and penalties; complaints for
compensation and of discrimination; and applications for temporary relief. No
provision of the Act or the Commission’s
Procedural Rules, however, grants me the authority to adjudicate the POV notice
itself. I therefore DISMISS Docket No. WEVA 2014‑81‑R.

On the other hand, a mine operator
can challenge a POV notice on an expedited basis[2]
before the Commission because I clearly have jurisdiction under section 105(d)
of the Act to hear any contest of any order issued pursuant to section 104(e)
of the Act, and any properly contested citation or order relied upon by the
Secretary in issuing the POV notice. Moreover, I also find that I have jurisdiction
to consider Brody’s
arguments that the rules implementing section 104(e) of the Act, set forth at
30 C.F.R. Part 104, are invalid B
arguments set forth in the company’s
motion for summary decision.

The Commission has long held that
it has the authority to entertain arguments regarding the validity of
regulations. See Freeman United Coal Co., 6 FMSHRC 1577, 1580 (July
1984). In Drummond Co., the Commission found that a policy letter issued
by the Secretary was invalid because the Secretary failed to promulgate it
according to the notice-and-comment procedures of the Administrative Procedure
Act, 5 U.S.C. § 551.
14 FMSHRC 661, 692 (May 1992). In explaining its authority to address
challenges to the Secretary’s
regulatory actions, the Commission stated:

The Mine Act expressly empowers the
Commission to grant review of “question[s]
of law, policy or discretion,”
and to direct review sua sponte of matters that are “contrary to Y Commission policy” or that present a “novel question of policyY.” Since Congress authorized the Commission to
direct such matters for review, we infer that Congress intended the Commission
to possess the necessary adjudicative power to resolve them. The reason the
Commission was created by Congress and equipped with broad remedial powers and
policy jurisdiction was to assure due process protection under the statute and,
hence, to enhance public confidence in the mine safety and health program. Addressing
claims of arbitrary enforcement by the Secretary is at the heart of that
adjudicative role.

Id. at 674-75 (citations and footnote omitted).

It is clear that the function of
the Commission is to assure that there is meaningful judicial review of the
process by which the Secretary promulgates rules, and the appropriate time to
do so is when the agency takes its first enforcement action against a mine
operator under the new rule or policy. It is also clear that a case such as
this, which raises important questions of statutory interpretation that “require a uniform and
comprehensive interpretation of the Mine Act,”
falls squarely within the area of Commission expertise as an independent review
body. Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 214‑15 (1994).

I. STATUTORY AND REGULATORY
BACKGROUND

A. Mine Act Section 104(e)

Section 104(e) of the Act states in
part:

If an operator has a pattern of
violations of mandatory health or safety standards [POV] in the . . . mine
which are of such nature as could have significantly and substantially
contributed to the cause and effect of coal . . . mine health or safety
hazards, he shall be given written notice that such pattern exists.

30 U.S.C. §
814(e). Once given a POV notice, an operator is subject to an order of
withdrawal each time an inspector cites it for a significant and substantial
(S&S)[3] violation
until a complete inspection of the mine has revealed no further S&S
violations. Id.

Section 104(e) is one of several
enforcement tools available to MSHA to ensure that mine operators place the
safety of miners above all other considerations, in accordance with the Mine
Act’s declaration that
“the first priority
and concern of all in the . . . mining industry must be the health
and safety of its most precious resource C
the miner.” 30 U.S.C. § 801(a). Identifying
and sanctioning mine operators for patterns of serious violations “is an integral part of the
Act’s enforcement
scheme, a scheme which, as an incentive for operator compliance, provides for >increasingly severe
sanctions for increasingly serious violations or operator behavior.’” Emery Mining Corp., 9 FMSHRC 1997,
2000 (Dec. 1987) (citing Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 828 (Apr.
1981)). Thus, section 104 of the Act provides authorized representatives of
Secretary B i.e., MSHA
inspectors B with the
authority to issue citations and orders after they make certain findings that
violations of the standards and regulations implementing the Act have occurred,
including citations issued under section 104(a), orders issued under section
104(b) for a failure to abate a violation cited under section 104(a), and
section 104(d) citations and orders issued when a mine operator commits an
unwarrantable violation.

Section 104(e) provides an
incrementally more severe sanction B
a withdrawal remedy B
that MSHA may invoke when it finds that a mine operator has engaged in a
pattern of S&S violations. The statute contemplates the following sequence
of events: First, a mine operator shall have been “engaged in a pattern of violations of
mandatory health or safety standards in the . . . mine which are of
such nature as could have significantly and substantially contributed to the
cause and effect of . . . mine health or safety hazards.” When MSHA determines that
such a pattern exists, the agency provides to the operator a “written notice that such a
pattern exists.” Following
the issuance of the pattern notice, for a period of ninety days, if the mine
operator has any newly discovered S&S violations, MSHA may issue a section
104(e) withdrawal order. 30 U.S.C. §
814(e)(1).

Once one or more of such orders are
issued, the mine operator may be subject to additional withdrawal orders for
each new S&S violation subsequently discovered, until such time as there is
a complete inspection of the mine that discloses no S&S violations. 30
U.S.C. § 814(e)(2).
These withdrawal orders “cause
all persons in the area affected by such violation . . . to be withdrawn
from, and to be prohibited from entering, such area until an authorized
representative of the Secretary determines that such violation has been abated.” 30 U.S.C. § 814(e)(1).

The term “pattern of violations” is not defined in the text of the Mine Act. Nor
has the Commission fully adjudicated any enforcement actions wherein the
Secretary has stated how he proposed establishing what constitutes a “pattern of violations.” Thus, the Commission has
not had the opportunity to determine the statutory meaning of the term “pattern of violations.”

B. Rules Implementing Mine Act Section 104(e)

Although the Act grants the
Secretary the authority to “make
such rules as he deems necessary to establish criteria for determining when a
pattern of violations of mandatory health or safety standards exists,” 30 U.S.C. § 814(e)(4), it was not
until 1990 that such regulations were promulgated. 55 Fed. Reg. 31136 (July 31,
1990) (codified at 30 C.F.R. Part 104). The Secretary revised the Part 104 POV
regulations in early 2013, with an effective date of March 25, 2013. 78 Fed.
Reg. 5056 (Jan. 23, 2013).

Under the procedures promulgated in
1990, MSHA engaged in an annual initial screening process, which included
reviewing information regarding a “mine’s history of
. . . [S&S] violations.”
30 C.F.R. § 104.2(1)
(1990). Section 104.3 specified the information MSHA used to identify mines
with a “potential” POV (PPOV). It stated:

(a) The criteria of this section shall
be used to identify those mines with a potential pattern of violations. These
criteria shall be applied only after initial screening conducted in accordance
with § 104.2
. . . reveals that the operator may habitually allow the recurrence
of violations of mandatory safety or health standards which . . .
[are S&S]. These criteria are:

(1) A history of
repeated [S&S] violations of a particular standard;

(2) A history of
repeated [S&S] violations of standards related to the same hazard; or

(3) A history of
repeated [S&S] violations caused by unwarrantable failure to comply.

(b) Only citations and orders issued
after October 1, 1990, and that have become final shall be used to
identify mines with a potential [POV].

30 C.F.R. §
104.3 (1990) (emphasis added). This section does not specify the actual numbers
of final orders to be applied in the screening process, which provided MSHA
wide discretion in determining when a POV existed. Guidance issued by the
agency stated, however, that “[f]or
a pattern of violations review, mines identified during the initial screening
must have at least five S&S citations of the same standard that became
final orders of the [C]ommission during the most recent 12 months OR at least
two S&S unwarrantable failure violations that became final orders of the
[C]ommission during the most recent 12 months.”
Secy’s Motion Sum.
Dec. at Ex. 2 (Pattern of Violations Screening Criteria B 2012) (emphasis omitted). The record is
silent on how often this disjunctive final order screening process had operated
to remove many otherwise potentially “at
risk” operators from
further POV consideration.

When notified of a PPOV, an operator
would have the opportunity to engage in an assortment of remedial measures,
including submission of a written corrective action plan designed to eliminate
repeated S&S violations. In determining whether to issue a formal POV
notice after issuance of a PPOV, MSHA would determine whether the operator had
reduced the frequency rate of S&S violations by 30 percent or had achieved
a frequency rate for S&S violations that was at or below the industry
average. The citations and orders used to make such a determination did not
need to be final orders of the Commission. See Rockhouse Energy Mining
Co., 30 FMSHRC 1125, 1129-30 & fn.4-5 (Dec. 2008) (ALJ).]

MSHA revised the Part 104 POV
regulation in 2013 because it “determined
that the existing regulation [did] not adequately achieve the intent of the
[Mine Act] that the POV provision be used to address mine operators who have
demonstrated a disregard for the health and safety of miners.” 78 Fed. Reg. at 5056. From
the time of the passage of the Mine Act, a number of mine operators received
PPOV notices but actual POV notices were almost never issued because, at least
during the violation avoidance period, the subject mine operators were able to
reduce the issuance rates to below MSHA’s
improvement criteria. Id. at 5058. See also Sec’y 6th Cir. Br. at 11.[4]
In fact, the National Mining Association claims that no economically viable
mine operator ever received a pattern of violations notice. NMA 6th Cir. Br. at
40.

The 2013 revision to the POV
regulation streamlines the procedures set forth in the prior rule. As in the
prior rule, once every 12 months MSHA will review the compliance records and
accident and injury records of mines to identify where patterns of S&S
violations exist. There are initial screening criteria composed of eight
elements related to issuances of certain types of citations and orders,
accident and injury rates and mitigating factors. 30 C.F.R. § 104.2(a)(1‑8). These
criteria are nearly identical to the screening criteria under the prior rule,
but in the revised regulation, there is no requirement that any of the
issuances considered in the initial screening be final orders of the
Commission. See 78 Fed. Reg. at 5059‑60. MSHA has also disclosed its
internal procedures that illustrate how the agency will conduct POV reviews. According
to MSHA’s POV
Procedures Summary, at least once per year, a date will be chosen to conduct
the review, and screening criteria will be applied. The MSHA Administrator will
send the results to MSHA district managers who, in turn, will write a
memorandum to the MSHA Administrator reporting any mitigating circumstances
that justify postponing a POV notification. Next, a POV panel reviews that
information, along with any other necessary information, and makes a recommendation
to MSHA administrators and other high level officials. The administrators make
the final decision regarding the issuance of a POV notice after receiving that
information. In addition, a mine operator can meet with a district manager to
provide input as to the accuracy of MSHA’s
records. See Brody Appl. for Temp. Relief at Ex. 11.

The new rule provides that “MSHA will post the specific
pattern criteria on its Web site.”
30 C.F.R. § 104.2(b).
The preamble to the regulation states that the information available on MSHA’s website will include “the specific criteria, with
numerical data, that the Agency will use to identify mines with a pattern of
S&S violations.” 78
Fed. Reg. at 5064. MSHA also notes that it “may
from time to time need to modify thresholds and other factors to assure mine
operators of fair and equitable criteria that take into account different mine
sizes, mine types, and commodities.”
Id.

The preamble also highlights MSHA’s creation of “a user‑friendly >Monthly Monitoring Tool for
[POV]’ . . .
that provides mine operators, on a monthly basis, a statement of their
performance with respect to each of the PPOV screening criteria.” Id. at 5057. MSHA
characterizes the Monitoring Tool as “quick
and easy to use; it does not require extra skill or training.” Id. MSHA eliminated
all of its prior PPOV procedures based largely on the creation of this tool,
stating in the preamble that “[e]limination
of PPOV underscores the mine operators’
responsibility to monitor their own compliance records and encourages them to
verify that the information on MSHA’s
Web site is accurate.”
Id. at 5059.

Under the new rule, following the
initial review process, the appropriate district manager simply issues the POV
notice to any mine operator that he or she believes has committed a pattern of
S&S violations. Thus, the revised rule eliminates the PPOV process that
existed under the prior rule (with attendant delays of up to 120 days for
assessment of compliance improvement). 30 C.F.R. § 104(3);
see 78 Fed. Reg. at 5058‑5059.

To summarize, the effects of the
revised POV regulation are to change only two salient aspects of the prior POV
issuance process. First, the final order screening criteria MSHA used under the
prior rule in one step of the POV screening process has been eliminated. Second,
the PPOV process, with its attendant “cure
period,” has been
eliminated and replaced by a system of ongoing internet self‑monitoring, with
any compliance efforts considered as a mitigating factor. As for the statutory
meaning of the term “pattern
of violations” for
purposes of demonstrating a valid POV notice, the revised regulation does not
break the silence of its predecessor.

C. Summary Decision before the Commission

Motions for summary decision are
governed by Commission Procedural Rule 67, which provides:

A motion for summary decision shall be
granted only if the entire record, including the pleadings, depositions,
answers to interrogatories, admissions, and affidavits, shows:

(1) That there is no genuine issue as
to any material fact; and

(2) That the moving party is entitled
to summary decision as a matter of law.

29 C.F.R. § 2700.67(b).
The Commission “has
long recognized that [] >[s]ummary
decision is an extraordinary procedure,”’ and has analogized it to
Rule 56 of the Federal Rules of Civil Procedure,[5]
under which “the
Supreme Court has indicated that summary judgment is authorized only >upon proper showings of
the lack of a genuine, triable issue of material fact.”’
Energy West Mining Co., 16 FMSHRC 1414, 1419 (July 1994) (quoting Missouri
Gravel Co., 3 FMSHRC 2470, 2471 (Nov. 1981); Celotex Corp. v. Catrett,
477 U.S. 317, 327 (1986)).

II. PROCEDURAL
HISTORY

On October 24, 2013, MSHA issued to
Brody a notice that “a
pattern of violations exists at the Brody Mine No. 1.” Notice No. 7219154. The notification
explained that “a
review of the S&S violations cited at the mine demonstrates a pattern of
violations. As illustrative of this pattern of violations, the following groups
of violations are representative of the violations which are of such a nature
as could have significantly and substantially contributed to the cause and
effect of coal or other mine safety or health standards.” What follows in the notice is a listing of 54
S&S citations and orders issued between October 9, 2012 and October 8,
2013, grouped according to the hazards they allege (ventilation and methane
hazards, emergency preparedness and escapeway hazards, roof and rib hazards,
and inadequate examination hazards). Id. All the citations and orders
listed in the notice are either contested or in the penalty assessment process
and have not become final orders of the Commission.

Since the issuance of Notice No.
7219154, MSHA has issued (and continues to issue as of the date of this order)
numerous section 104(e) withdrawal orders. Brody has contested, and continues
to contest, all of these orders (since Brody received its POV notice, and as of
the date of this order, it has been issued 28 section 104(e) orders that have
been contested and docketed at the Commission). As additional contests are
filed with the Commission, I will consolidate them with these proceedings.

On November 4, 2013, Brody filed an
Application for Temporary Relief and Vacation of the Notice of Pattern of Violations.
Brody’s application
was denied on November 21, 2013 because it did not establish that the requested
relief would not adversely affect the safety and health of miners. Before me
now are the aforementioned cross motions for summary decision filed by Brody on
November 27, 2013, and the Secretary on December 10, 2013.

III. STIPULATIONS
OF FACT

The parties have entered the
following stipulations of fact relevant to my consideration of their cross
motions for summary decision:

1. Brody is an “operator” as defined in § 3(d) of the Federal Mine
   Safety and Health Act of 1977, as amended (hereinafter “the Mine Act”),
   30 U.S.C. § 803(d), at
   the coal mine at which the Orders at issue in this proceeding were issued.

2. The Brody Mine, an underground
   bituminous coal mine at which the Orders were issued in this proceeding, is
   subject to the jurisdiction of the Mine Act.

3. This proceeding is subject to
   the jurisdiction of the Federal Mine Safety and Health Review Commission and
   its designated Administrative Law Judges pursuant to Sections 105 and 113 of
   the Mine Act.

4. The individuals whose signatures
   appears in Block 22 of the Orders at issue in this proceeding were acting in
   their official capacity and as authorized representatives of the Secretary of
   Labor when the Orders were issued.

5. True copies of the Orders at
   issue in this proceeding were served on Brody as required by the Mine Act.

6. The regulations on which MSHA
   relies to issue the notice of pattern of violations became final on March 25,

7. See [78] Fed. Reg. §
   5056 (January 23, 2013). Such rules are currently being challenged in the
   United States Court of Appeals for the Sixth Circuit by the National Mining
   Association and Murray Energy Corporation, among others.

8. The rule relies upon issued
   citations/orders regardless of whether they are final orders of the Commission
   as a basis for determination of the existence of a pattern of violations.

9. MSHA based its POV determination
   on a 12‑month period ending August 31, 2013.

10. The parties disagree as to the
    effect of MSHA’s
    screening criteria set forth on MSHA’s
    website. Brody believes the effect is that, absent mitigating circumstances, a
    mine that meets the screening criteria is placed on a pattern of violations. The
    Secretary submits that such criteria are used to screen mines and identify
    mines that will be more closely reviewed for the determination of whether a
    pattern of violations exists.

11. The screening criteria were not
    subjected to mandatory notice‑and‑comment procedures. The parties disagree as
    to whether such notice and comment procedures were required by the
    Administrative Procedure Act.

12. A written notice was issued
    under Notice No. 7219154 on October 24, 2013, pursuant to section 104(e)(1) of
    the Act, 30 U.S.C. § 814(e),
    notifying the operator that MSHA finds that a pattern of violations exists at
    the Brody Mine No. 1.

13. Under the heading and caption “Condition or Practice” the Notice alleges in
    relevant part as follows:

Pursuant to Section 104(e)(1) of the
Federal Mine Safety and Health Act of 1977 (Mine Act), you are hereby notified
that a pattern of violations exists at the Brody Mine No. 1 (ID 46‑09086). A
review of the S&S violations cited at the mine demonstrates a pattern of violations.
As illustrative of this pattern of violations, the following groups of
violations are representative of violations which are of such nature as could
have significantly and substantially contributed to the cause and effect of
coal or other mine health or safety hazards:

1. The following eighteen
   citations/orders were issued citing conditions and/or practices that contribute
   to ventilation and/or methane hazards: 8125045 (10/9/12), 8137713 (10/9/2012),
   8146352 (10/9/2012), 7167400 (11/26/12), 7168841 (11/26/2012), 7168866
   (1/14/2013), 8139621 (1/15/2013), 7168913 (2/13/2013), 3577965 (2/2/7/2013),
   3578036 (5/15/2013), 8155954 (5/21/2013), 8155960 (5/29/2013), 8154782
   (6/5/2013), 9000282 (6/10/2013), 7165682 (7/24/2013), 9000311 (7/30/2013),
   9000312 (7/30/2013), 9002292 (8/27/2013).

2. The following twenty
   citations/orders were issued citing conditions and/or practices that contribute
   to emergency preparedness and escapeway hazards: 8153617 (10/9/2012), 7167386
   (10/22/2012), 7167387 (10/23/2012), 7167388 (10/29/2012), 7167389 (10/29/2012),
   7167393 (11/1/2012), 7167405 (12/4/2012), 7167412 (12/12/2012), 7168854
   (12/17/2012), 7167474 (3/18/2013), 8155914 (4/8/2013), 9000286 (6/19/2013),
   7165680 (7/17/2013), 9000305 (7/24/2013), 9000309 (7/29/2013), 9000313
   (7/30/2013), 7165694 (8/14/2013), 7166781 (10/3/2013), 7166783 (10/8/2013),
   7166784 (10/8/2013).

3. The following nine citations/orders
   were issued citing conditions and/or practices that contribute to roof and rib
   hazards: 8151320 (10/18/2012), 7168899 (2/5/2013), 7167471 (3/6/2013), 8155908
   (4/4/2013), 8155925 (4/17/2013), 8155936 (5/6/2013), 9000277 (6/5/2013),
   7165683 (7/24/2013), 9000307 (7/29/2013).

4. The following seven
   citations/orders were issued citing conditions and/or practices that contribute
   to inadequate examinations: 7168801 (10/18/2012), 7167473 (3/18/2013), 8155909
   (4/4/2013), 8155926 (4/17/2013), 8155937 (5/6/2013), 9000278 (6/5/2013),
   9000304 (7/24/2013).

These groups of violations, taken
alone or together, constitute a pattern of violations of mandatory health and
safety standards in the coal or other mine which are of such nature as could
have significantly and substantially contributed to the cause and effect of
coal or other mine health or safety hazards.

If upon any inspection within 90 days
after issuance of this Notice, an Authorized Representative of the Secretary
finds any violation of a mandatory health or safety standard that could
significantly and substantially contribute to the cause and effect of a coal or
other mine safety or health hazard, the Authorized Representative shall issue
an order requiring the operator to cause all persons in the area affected by
such violation, except those persons referred to in Section 104(c) of the Mine
Act, to be withdrawn from, and to be prohibited from entering such area until
an Authorized Representative of the Secretary determines that such violation
has been abated. This Notice of Pattern of Violation shall remain posted at the
Brody Mine No. 1 until it is terminated by an Authorized Representative.

13. The contest of that Notice is
    docketed at No. WEVA 2014‑81‑R.

14. 253 S&S citations/orders
    were issued to Brody Mine No. 1 over the course of 12 months from September 1,
    2012 through August 31, 2013. 108 S&S citations/orders were issued between
    March 25, 2013 and August 31, 2013.

15. The rate of S&S issuances
    at the Brody Mine No. 1 was 8.41 per 100 inspection hours during the screening
    period.

16. None of the S&S
    citations/orders that were issued at the Brody Mine No. 1 during the screening
    period are final orders of the Commission.

17. Each of the citations/orders
    listed in POV Notice 7219154 have either been contested by Brody or have not
    yet been assessed a civil penalty by MSHA . . .

18. 21 elevated enforcement actions
    (defined as citations or orders issued pursuant to Sections 104(b), 104(d),
    104(g) or 107(a) of the Mine Act) were issued by MSHA at the Brody Mine No. 1
    during the screening period.

19. The rate of elevated
    enforcement actions issued to the Brody Mine No. 1 during the screening period
    was .7 per 100 inspection hours.

20. The Severity Measure for the
    Brody Mine No. 1 was above the national average for the screening period.

21. Approximately 57% of the
    S&S citations listed in the 2013 POV review data for Brody Mining are
    currently in contest due to the designated severity, with a significant portion
    of S&S issuances presently un‑assessed. Further, 31 of the citations upon
    which MSHA is referencing in the POV notice have not been assessed penalties.

22. 24 citations/orders referenced
    in the pattern notice were issued before March 25, 2013. 30 citations/orders
    referenced in the pattern notice were issued after March 25, 2013.

23. Brody contends that if the citations referenced in the
    pattern notice at issue only involve those issued after March 25, 2013, the
    number of S&S citations per 100 inspection hours would be below the 8.0
    S&S per 100‑hour criteria. The Secretary contends that application of the
    screening criteria is not subject to review and Brody contends that it is. The
    Secretary further contends that the screening criteria are designed to apply to
    a twelve month period and applying those criteria to a shorter time frame would
    not be as representative. It is further the Secretary’s position that all S&S citations/orders
    issued during the period under consideration, not just those listed in the
    pattern notice, must be considered when applying the screening criteria. It is
    Brody’s contention
    that based on the Secretary’s
    arguments in this matter that he is arguing that the citations /orders in the
    pattern notice establish a pattern of violations.

24. 108 S&S citations or orders
    were issued to Brody Mine No. 1 between March 25, 2013 and August 31, 2013 with
    a total of approximately 1468.75 MSHA inspection hours as calculated by MSHA
    (1506 by Brody’s
    records). The S&S rate using MSHA’s
    number, for that period would be 7.35 per 100 inspection hours and 7.17 by
    Brody’s calculation.

25. 12 citations/orders designated
    as S&S with a negligence finding of high or reckless disregard were issued
    between March 25, 2013 and August 31, 2013 representing 11% of the 108 S&S
    citations/orders issued during that period.

IV. PARTIES’ ARGUMENTS

Brody argues that it is entitled to
summary decision on several grounds. As a preliminary matter, the company
argues that the revised POV rule (78 Fed. Reg. 5056) is invalid because it is
arbitrary, capricious, and an abuse of discretion, and because it impermissibly
construes the term “violation” to include non‑final
orders. Brody Mot. Sum. Dec. at 3; NMA 6th Cir. Br. at 6. Brody also argues
that its POV notice is invalid because MSHA relied on screening criteria that
was not subject to notice‑and‑comment rulemaking, which, Brody argues, MSHA was
required to do. Brody Mot. Sum. Dec. at 3. Further, Brody argues the
application of the POV rule does not provide adequate procedural due process to
mine operators. NMA 6th Cir. Br. at 19. Finally, Brody argues that the POV
notice it was issued is invalid because it relies on violations that occurred
before the effective date of the new regulations in an impermissibly
retroactive manner. Brody Mot. Sum. Dec. at 1‑2.

The Secretary opposes Brody’s motion in its entirety,
and believes he is entitled to summary decision on certain issues of law. The
Secretary argues that the POV rule is valid, that it is consistent with the
Mine Act and Administrative Procedure Act, and does not violate the due process
clause of the 5th Amendment to the U.S. Constitution. Sec’y Mot. for Sum. Dec. at 2. The
Secretary also argues that the screening criteria are a valid statement of
agency policy and did not need to be subjected to notice‑and‑comment rulemaking
as a matter of law. Id. Finally, the Secretary argues that the
application of the POV rule to Brody was not impermissibly retroactive. Id.

V.
FINDINGS OF LAW

A. The Term “Violation” as used in Section 104(e)

I first address the question of
whether the regulation promulgated by the Secretary to implement section 104(e)
of the Mine Act, 30 C.F.R. Part 104, is consistent with the terms of the Act. When
assessing the validity of standards and regulations the courts have adopted the
two‑part test set forth by the Supreme Court in Chevron U.S.A, Inc. v.
Natural Resources Defense Council, 467 U.S. 837 (1984). In Chevron,
the Court stated:

When a court reviews an agency’s construction of the
statute which it administers, it is confronted with two questions. First,
always, is the question whether Congress has directly spoken to the precise
question at issue. If the intent of Congress is clear, that is the end of the
matter; for the court, as well as the agency, must give effect to the
unambiguously expressed intent of Congress. If, however, the court determines
Congress has not directly addressed the precise question at issue, the court
does not simply impose its own construction on the statute, as would be
necessary in the absence of an administrative interpretation. Rather, if the
statute is silent or ambiguous with respect to the specific issue, the question
for the court is whether the agency’s
answer is based on a permissible construction of the statute.

Id. at 842‑843 (citations and footnotes omitted). See
also Nat’l Mining
Ass’n v. MSHA,
116 F.3d 520, 526 (D.C. Cir. 1997) (relying on Chevron).

The Court in Chevron
explained that when there is an explicit delegation of rulemaking authority,
the degree of deference given to the promulgating agency is very high:

The power of an administrative agency
to administer a congressionally created . . . program necessarily
requires the formulation of policy and the making of rules to fill any gap
left, implicitly or explicitly, by Congress. If Congress has explicitly left a
gap for the agency to fill, there is an express delegation of authority to the
agency to elucidate a specific provision of the statute by regulation. Such
legislative regulations are given controlling weight unless they are arbitrary,
capricious, or manifestly contrary to the statute.

467 U.S. at 843‑844 (citations and footnotes omitted).

In this case, in specifying that
the Secretary “shall
make such rules as he deems necessary to establish criteria for determining
when a pattern of violations of mandatory health or safety standards exists,” 30 U.S.C. § 104(e)(4), Congress
has granted the Secretary explicit regulatory authority to determine the
criteria for action under Section 104(e) of the Act. Accordingly, the
Commission must give controlling weight to the criteria the Secretary
determined were necessary for the Secretary’s
POV determination unless the criteria are “arbitrary,
capricious or manifestly contrary to the statute.”
467 U.S. at 844.

Brody argues that under the Mine
Act, only final orders can be considered in establishing a POV because
the term “violation” in the phrase “pattern of violations” as set forth in section
104(e) can only refer to finally adjudicated issuances. NMA 6th Cir. Br. at 21‑22.
According to Brody, this is evident from the plain meaning of the term “violation:” “A >violation’ is >[a]n infraction or breach of the law; a
transgression . . . [t]he act of breaking or dishonoring the law; the
contravention of a right or duty.’
Black’s Law
Dictionary 1564 (7th ed. 1999). A violation is an established fact B not a mere allegation B that an operator violated
a law or regulation.” NMA
6th Cir. Br. at 22.

Brody notes that the issuance of a
section 104(a) citation occurs when a mine inspector “believes”
that a mine operator has violated any standard, rule, or regulation; and that
section 104(a) of the Act requires that each citation reference the legal rule “alleged to have been
violated,” which would
be surplus language if “violation” was merely taken to mean
an issued citation or order. The Secretary responds to Brody’s textual arguments by
claiming that the term “violation” is ambiguous, and under
the tenets of statutory construction set forth in Chevron, the Secretary
is owed deference to his reasonable interpretation that the “pattern of violations” referred to in section
104(e) includes issuances that are not yet final. See generally Secy’s 6th Cir. Br. at 23‑33. The
Secretary points out that although section 104(a) does include language
requiring citations to state the provision “alleged
to have been violated,”
it also requires the citation the inspector issues to “fix a reasonable time for the abatement of the
violation.” Secy’s 6th Cir. Br. at 22. The Secretary
refers to sections 104(b) and 104(d) in which the word “violation”
must be read as referring to recent acts, which are remedied under those
provisions and thus not yet subject to final adjudication. Secy’s 6th Cir. Br. at 22-23. The
Secretary also cites to the Commission’s
reading that under Section 104(d)(1), a subsequent withdrawal order can be
issued although no penalty has yet been proposed for the order or citation
preceding it. Secy’s
6th Cir Brief at 23 (citing Energy Fuels Corp., 1 FMSHRC 299, 307‑308
(May 1 1979)). The Secretary also claims that his reading is consistent with
section 104(h) of the Act, which states that “[a]ny
citation or order under this section shall remain in effect until modified,
terminated or vacated”
by the Secretary, the Commission, or the courts; and with comments in the
Congressional Record by Senators considering the meaning of the term “pattern of violations.” Secy’s 6th Cir. Br. at 24,
30-33.

Brody’s
textually based arguments lack merit. It is unclear how the Black’s Law Dictionary definition
that Brody relies on compels one to find that only finally adjudicated actions
are violations. In fact, the definition of “violation” as an “act of breaking or
dishonoring the law; the contravention of a right or duty” emphasizes that the term
can refer to an action rather than a legal outcome. This second common
definition is consistent with the Secretary’s
reading of section 104(e).

More importantly, the term “violation” is used in the Act in
several remedial sections that clearly indicate that existence of a final order
was never contemplated. For example, section 104(b) mandates that a violation
need not be finally adjudicated for a duty to abate to arise. This duty to abate
is one of the very cornerstones of the Mine Act. The statute has also
established in section 104(d) a procedure for issuance of unwarrantable failure
orders. By the wording of the statute it is clear that prior non‑final
issuances suffice to establish a section 104(d) withdrawal sequence. After the
issuance of an unwarrantable failure citation, any subsequent unwarrantable
violations found “during
the same inspection or any subsequent inspection of such mine within 90 days” will result in the
issuance of an unwarrantable failure orders. 30 U.S.C. § 814(d). Because of the time frames
involved, it is clear that Congress did not intend the initial issuances to
have become final orders before the subsequent orders were issued.

Moreover, the legislative history
makes clear that 104(d) orders can be validly issued even if the prior,
predicate orders and citations are still in contest. As one judge noted in an
earlier opinion on this question:

[T]he Secretary aptly compares the
pattern of violation application with the unwarrantable failure sequence of
Section 104(d). This is not a stretch by any means, as the Senate Report itself
made such a comparison, observing that the POV “sequence
parallels the current unwarrantable failure sequence.” S. Rep. No. 95‑181, p. 33. Particularly
pertinent here in that comparison is the point that “[i]t is beyond debate that a closure order
under Section 104(d)(1) may be based upon a Section 104(d)(1) citation that is
not final, and a closure order under Section 104(d)(2) may be based upon a
Section 104(d)(1) order that is not final.”
Id. at 25.

Bledsoe Coal Corp., 34 FMSHRC 1136, 1154 (May 2012)
(ALJ).

Another usage of the term “violation” that indicates it was
never intended to refer only to finally adjudicated citations and orders is
found in section 103(g) of the Act, which gives miners the right to notify MSHA
of “violations.” The section states in
part: “Prior to or
during any inspection of a . . . mine, any representative of miners
or a miner . . . may notify the Secretary . . . of any violation of
this Act.” 30 U.S.C. § 813(g)(2).

Finally, Brody argues that the
consideration but ultimate rejection of a bill proposing amendments to the Mine
Act that would have eliminated the final order requirement in the POV rule
indicates Congressional support of the final order requirement. NMA 6th Cir.
Br. at 26-28. I find this unconvincing. As the Secretary correctly points out,
the Supreme Court has held that courts should give little if any weight to
failures by Congress to enact clarifying amendments related to the
interpretation of a statute. Sec’y
6th Cir. Brief at 33; Central
Bank of Delaware v. First Interstate Bank of Delaware, 511 U.S. 164, 187 (1994) (“Congressional inaction lacks persuasive significance because
several equally tenable inferences may be drawn from such inaction.” (citations omitted)).

I conclude that the term “violation,” as used in section 104(e)
of the Act, is ambiguous, and that the Secretary’s
interpretation of the term as referring to a violation which is the subject of
an issuance, whether final or not, is reasonable and as such is entitled to
deference.

B. Validity of 30 C.F.R. Part 104 under the
Administrative Procedure Act

1. Arbitrary and Capricious
   Discussion

Having determined that nothing in
the Mine Act requires that MSHA must rely on issuances that have become final
orders in determining whether a mine operator should be considered for further
evaluation and potentially issued a POV notice, I now turn to the question of
whether the policy choices the Secretary made when promulgating 30 C.F.R. Part
104 were arbitrary, capricious, or an abuse of discretion. In essence, Brody
wants MSHA to base its POV decisions on past violations rather than
current conditions in a mine. For the following reasons, I reject
this proposition.

A regulation will run afoul of the
provisions of section 706(2)(A) of the Administrative Procedure Act (APA) if a
reviewing court finds it “arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). In Motor
Vehicle Manufacturers Association of the U.S. v. State Farm Mutual Auto Ins.
Co., the Supreme Court held that under the arbitrary and capricious
standard, “a reviewing
court may not set aside an agency rule that is rational, is based on
consideration of relevant factors, and is within the scope of the authority
delegated to the agency by statute.”
463 U.S. 29, 43 (1983). The scope of review is narrow and a court must not
substitute its judgment for that of the agency. Id. Courts will look to
determine whether the agency examined the relevant data and articulated a
satisfactory explanation for its action including a “rational connection between the facts found
and the choice made.” Id.
The court went on to say:

Normally, an agency rule would be
arbitrary and capricious if the agency has relied on factors which Congress has
not intended it to consider, entirely failed to consider an important aspect of
the problem, offered an explanation for its decision that runs counter to the
evidence before the agency, or is so implausible that it could not be ascribed
to a difference in view or the product of agency expertise.

Id. at 44. The holding in Motor Vehicles
Manufacturers has specifically been applied to standards issued under the
Mine Act. See NMA v. MSHA, 116 F. 3d 520, 527 (D.C. Cir. 1997); Kennicott
Greens Creek Mining Ass’n
v. MSHA, 476 F.3d 946, 952 (D.C. Cir. 2007); UMWA v. MSHA, 626 F. 3d
84, 90 (D.C. Cir. 2010). A party challenging a rule has the burden of proof,
and the court’s review
is limited to the rulemaking record before the agency. Advocates for Highway
and Auto Safety v. Fed. Motor Carrier Safety Admin., 429 F.3d 1136, 1144
(D.C. Cir. 2005); Kroger Co. v. Reg. Airport Auth., 286 F.3d 382, 387
(6th Cir. 2002).

Brody attacks MSHA’s revised POV rule as non‑compliant
with section 706 of the APA on several grounds. First, it argues that the
agency’s decision to
rely on citations and orders that include non‑final issuances for its POV
screening criteria is flawed, since some portion of the S&S violations MSHA
uses may subsequently be vacated or modified to eliminate the S&S
designation originally made by the inspector. NMA 6th Cir. Br. at 31‑33; NMA
6th Cir. Reply Br. at 13. Brody claims that there is a fairly high rate B approximately 20 percent B of S&S issuances that
are later vacated. Accordingly, it claims that MSHA should have given a better
explanation as to why it is relying on a designation that the agency is so
frequently unable to sustain for its POV screening procedures. NMA 6th Cir. Br.
at 31‑33; NMA 6th Cir. Reply Br. at 13. The Secretary acknowledges that
recently issued, non‑final S&S issuances can later be reversed, but points
out that when uncontested S&S violations are included with contested ones,
the actual reversal rate is lower than Brody claims. Sec’y 6th Cir. Br. at 38-39.

Having acknowledged that inspectors’ findings are not invariably
sustained, the Secretary articulates the reason for his choice to include them,
to wit, that waiting for all issuances to be final carries the risk of
precluding MSHA from considering the most relevant data, which is a mine
operator’s recent
compliance history. Waiting on all determinations to become final before
considering them for POV screening purposes would result in a mine’s safety and health
practices in the past to outweigh those of the present B clearly an anomalous result. See Sec’y 6th Cir. Br. at 36‑38. This
is particularly true in light of the fact that, as set forth in the preamble to
the revised rule, high contest rates have in the past been correlated with low
case disposition rates. In 2011, for example, contested issuances lingered an
average of 534 days after issuance, and 18 percent of all violations remained
pending in contest two years after issuance. 78 Fed. Reg. at 5059‑5060.

In light of these considerations, I
find that the Secretary did not engage in arbitrary and capricious decision‑making
or abuse his discretion when he determined that MSHA’s POV screening criteria could be based on
recent issuances irrespective of their status as final. I take particular note
of the fact that MSHA’s
consideration of recent issuances B
whether final or not B
is for screening purposes only. The Secretary states in his brief to the 6th
Circuit that “the
screening criteria do not finally and conclusively determine whether the mine
has a POV. . . . [O]nce MSHA initiates an enforcement proceeding
under section 104(a) any contest thereof is under the jurisdiction of the
Commission, which is not bound by the Screening Criteria.” Sec’y 6th Cir. Br. at 45.

Since the Secretary claims that
these criteria are for his own pre‑enforcement decision‑making purposes, and
that they do not bind the Commission, concerns about erroneous S&S
determinations in issuances used to screen operators for POV scrutiny are
secondary to the determinative issue of whether the Secretary can prove the
existence of a POV by a preponderance of evidence in a de novo proceeding
before an impartial judge of the Commission. In such a hearing, S&S
violations must be conclusively proven to establish the existence of a POV. In
light of this, the Secretary’s
reliance on recent issuances for its screening criteria is reasonable.

While a mine operator’s long‑term history of
violations has clear relevance, including repeated violations of the same or
similar standards that have become final orders, the Secretary is reasonably concerned
with the current situation at a given mine in choosing which mine operators to
proceed against under section 104(e). If only relatively older final orders
were used for POV determinations, recent compliance levels would still have to
be addressed in any contest proceedings involving section 104(e) orders issued
after the issuance of a POV notice. Moreover, the data upon which Brody relies
reveal that the percentage of S&S violations that will survive to finality
is predictable. See NMA 6th Cir. Br. at 32. Accordingly, the
screening criteria the Secretary uses to determine which mine operators should
be subject to further scrutiny for MSHA’s
enforcement purposes can reasonably take into account all recent compliance
history. I thus find the Secretary’s
adoption of this policy rational, as well as adequately justified.

Brody also argues that it was
arbitrary and capricious for the Secretary to abandon the prior PPOV
procedures, which Brody claims successfully reduced the issuance of violations
at subject mines. NMA 6th Cir. Br. at 57‑58; NMA 6th Cir. Reply Br. at 14‑16. Specifically,
Brody claims that MSHA’s
data show that 94 percent of all mines that received a PPOV notice were able to
reduce their rate of S&S violations by 30 percent, and that mine operators
that had received a PPOV notice reduced their rate of S&S violations to
below the national average in 77 percent of the cases. Brody also points to the
decline in the fatality rate during the effective period of the prior Part 104
rule as proof of its efficacy. NMA 6th Cir. Reply Br. at 15‑16.

The Secretary agrees that the PPOV process
resulted in reductions in violations for mines that had been subject to PPOV
scrutiny. However, the Secretary notes that 21 percent of mine operators that
received PPOV notices regressed in their compliance rates, and potentially
faced being issued new PPOV notices. Sec’y
6th Cir. Br. at 40 (citing 78 Fed. Reg. at 5058). The Secretary also notes that
after avoiding issuance of POV notices, mines saw injury rate increases in the
following year at 39 percent of the subject mines. Sec’y 6th Cir. Br. at 40‑41 (citing 78 Fed. Reg.
at 5069). The Secretary points to the introduction of online monitoring, which
allows mine operators to know earlier in the POV process that they are at
potential risk for POV scrutiny, thereby allowing earlier voluntary efforts to
improve compliance. Sec’y
6th Cir. Br. at 41 (citing 78 Fed. Reg. at 5058-59). Finally, the Secretary
disputes Brody’s
assertion that a causal link exists between the prior rule’s PPOV process and overall
reductions in fatalities during the time when the prior rule was in effect,
noting that any such decrease can be attributed to any number of other causes,
including MSHA’s
enforcement of the Act. Sec’y
6th Cir. Br. at 41‑42.

Under the standard of review
articulated in Motor Vehicle Manufacturers, 463 U.S. at 44, I find the
Secretary’s arguments
persuasive, and that his determination to abandon the once-a-year PPOV process,
and to replace it with an ongoing online monitoring process, is rational. I am
particularly persuaded by the Secretary’s
concerns that PPOV compliance gains were sometimes fleeting, a phenomenon well
documented in the preamble to the revised rule. 78 Fed. Reg. at 5058-59. The
Secretary has adequately explained that the issuance of PPOV notices as a tool
for improved compliance has been superseded by the nearly instantaneous
notification of the need for greater compliance efforts through utilization of
MSHA’s web‑based
Monthly Monitoring Tool; and that the availability of online self‑monitoring
will benefit the health and safety of miners. Id. at 5059. I thus
conclude that the Secretary’s
elimination of the prior PPOV procedure is rational, well explained, and not
inconsistent with the Mine Act.

2. Due Process Discussion

Brody argues that the revised POV
rule deprives it of adequate due process. NMA 6th Cir. Br. at 38‑49. Due
process claims require the Commission to consider three factors when a
deprivation to a property interest occurs: (1) the private interest that will
be affected by the official action;”
(2) the risk of an “erroneous
deprivation of such interest through the procedures used,” and the value of
additional or substitute procedural safeguards; and (3) the government’s interest, including “the fiscal and
administrative burdens that the additional or substitute procedural requirement
would entail.” Mathews
v. Eldridge, 424 U.S. 319, 335 (1976). Due process, as described by the
Court in Mathews, is “not
a technical conception with a fixed content unrelated to time, place, and
circumstances,” and
further, “is flexible
and calls for such procedural protections as the particular situation demands.” Id. (citing Cafeteria
Workers v. McElroy, 367 U.S. 886, 895 (1961); Morrissey v. Brewer,
408 U.S. 471, 481 (1972)).

In general, the Fifth Amendment
guarantees some form of hearing prior to deprivation of life, liberty, or
property. Goldberg v. Kelly, 397 U.S. 254, 267 (1970). However, the
Supreme Court has held that a post‑deprivation hearing alone can be adequate
when public health and safety is at stake. See Hodel v. Va. Surface Mining
& Reclamation Ass’n,
452 U.S. 264, 298‑302 (1981) (holding that summary post‑deprivation procedures
satisfied due process when Secretary of Interior issued “immediate cessation” orders that were based on an inspector’s determinations that a
mine was violating the law and that surface mining activities were causing or
could reasonably be expected to cause significant, imminent environmental
harm); Ewing v. Mytinger & Casselberry, Inc., 339 U.S. 594, 595‑596
(1950) (affirming the FDA’s
seizure and destruction of mislabeled drugs without the opportunity for a pre‑deprivation
hearing due to the risk of injury to the purchaser of such drugs). In this
instance, the new POV rule provides for the issuance of a POV notice prior to a
hearing under which withdrawal orders under section 104(e) may be issued, which
burdens the operator’s
interest in uninterrupted mining operations. It is not until such a subsequent
order is issued that an operator has the opportunity for a hearing in which it
may contest the 104(e) order and the underlying notice. Determining whether
this is permissible involves balancing the operator’s property rights, the extent and type of
procedure provided, and the governmental interest.

Private Interest at Stake. As
a threshold matter, there must be a deprivation of a private property interest
in order for a court to engage in the Mathews balancing test. Although
the Secretary argues that Brody does not suffer any deprivation of property
whatsoever, I find that Brody does in fact suffer a deprivation of property
when subjected to the issuance of section 104(e) withdrawal orders under a POV
notice. However, I also find that Brody’s
descriptions of the POV notice’s
impacts on its private interests are overstated. Brody argues that the private
interests at stake are great because being on a POV notice may lead to mine
closures and harms reputation and stock prices. NMA 6th Cir. Br. at 39‑41. However,
a withdrawal order generally applies only to the section of the mine or piece
of equipment affected by the cited S&S violation, and MSHA generally orders
withdrawal only of persons exposed to a risk of harm from the cited violation. See
78 Fed. Reg. at 5066. Furthermore, in underground coal mines, S&S
violations are usually abated immediately or within hours of issuance and have
little or no impact on production, as the orders are lifted as soon as
abatement occurs. Id. at 5071. While some 104(e) orders might be
disruptive to daily operations, they cannot be expected to result in closures
of the entire mine on a regular basis. In addition, I reject Brody’s claims that a POV
sanction affects its private interests by harming its reputation and triggering
immediate reporting requirements under Securities and Exchange Commission (“SEC”) regulations because freedom from such
corporate reputational harms is not a right entitled to due process protections.
See Paul v. Davis, 424 U.S. 693, 711‑12 (1976).

Thus, Brody has a property interest
in the uninterrupted continuation of their mining operations without the threat
of withdrawal orders during subsequent inspections, and being on a POV status hampers
that interest by subjecting the mine to temporary disruptions of workflow
whenever an S&S violation is written. The question is whether the Mine Act’s post‑deprivation,
potentially expedited review processes and the government’s interest in issuing POV
notices to safeguard the health safety of miners are sufficiently strong to
justify this property deprivation.

Adequacy of Proposed New
Procedures. Although the procedures for protesting a POV notice are
available only after the imposition of the first closure order, I find that the
expedited procedures in the Mine Act and the Commission’s Procedural Rules allow for expedient
adjudication and relief for erroneous deprivations before significant
deprivation of private interests occurs. Section 105(b)(2) of the Act allows
for a party to file a request for temporary relief, which a Judge may grant
after a showing by the applicant that there is a substantial likelihood that
the findings of the Commission will be favorable to the applicant and that such
relief will not adversely affect the health and safety of miners. See 29
C.F.R. Subpart F. The Commission’s
Procedural Rules further require that responses to an application for temporary
relief be filed within four days, allowing for quick cessation of a POV notice
should a Judge find the notice was issued erroneously. See 29 C.F.R. § 2700.46(b). I note
that Brody availed itself of these procedures in these proceedings before Judge
Steele. Beyond the temporary relief provisions, the Commission’s rules also provide
parties the opportunity to request expedited proceedings in order to have cases
quickly adjudicated. 29 C.F.R. § 2700.52.
These procedures mitigate the pre‑hearing deprivation of a POV by allowing for
swift remedies in cases of wrongful issuance.

Brody argues that these procedures
are inadequate because it claims that violations designated as S&S are
later overturned by Commission Judges at a rate of 20‑30 percent, and that
review of S&S designations prior to deprivation is necessary to reduce the
risk of erroneous deprivation. NMA 6th Cir. Br. at 41-44. Even at such a rate
of S&S designations being overturned, the majority of S&S designations
are still upheld or uncontested. See Sec’y
6th Cir. Br. at 58. The Secretary points out that when this is viewed in light
of his position that he does not need a minimum number of valid S&S
designations to prove a “pattern” within the meaning of the
statute, the risk of erroneous deprivation due to overturned S&S citations
is quite low. Id. at 57.

Brody’s
arguments also equate the elimination of the PPOV process to the elimination of
a crucial procedural safeguard. But as discussed above, operators still have
access to the screening criteria online and are capable of ascertaining whether
they are at risk of receiving a POV notice and taking corrective action as
needed. In fact, this provides operators with more day‑to‑day opportunities to
understand their risk and take corrective action without having to wait for
formal issuances from MSHA.

The cost of additional procedures
that Brody suggests is unacceptably high. NMA 6th Cir. Br. at 47‑48. Requiring
MSHA to wait until it has final orders to issue a POV notice, as Brody
suggests, would invite mine operators to contest as many cases as they can,
creating delays that could extend for years, resulting in case backlogs at MSHA
and the Commission. See 78 Fed. Reg. at 5059. It would also mean
that if a POV notice did issue, it would likely be based on past violations
that might not reflect current conditions in the mine. Id. Re‑instating
the PPOV process would also hamper future effective enforcement of section
104(e) of the Act. The PPOV system created circumstances in which operators
would come into compliance during the relevant period and then “backslide” into the dangerous
practices they engaged in before. See 78 Fed.Reg. 5058. Thus,
an additional “warning” such as the PPOV is likely
to harm more miners who are working in unsafe mines that managed to avoid POV
status.

By contrast, the risk of erroneous
deprivation under the current procedures is low. MSHA’s decision not to give written notice of a “potential” pattern will not increase
the risk of an erroneous pattern designation because MSHA provides the criteria
on their website so operators can monitor their own POV risk. 78 Fed. Reg. at
5059. The temporary relief and expedited review provisions of the Mine Act and
the Commission’s
Procedural Rules also provide a swift remedy for operators that believe they
were issued POV notices erroneously B
should they choose to avail themselves of such procedures B thus making the magnitude
of any erroneous deprivation very small.

Government Interest. In this
instance, the Government’s
interest is quite strong, because it centers on the health and safety of miners
and is needed to prevent injuries and fatalities in mines that have
demonstrated a pattern of dangerous conduct.

As the Supreme Court held in Hodel
v. Va. Surface Mining & Reclamation Ass’n, pre‑hearing deprivation of property
interests is often justified in cases when the government must act quickly to
protect public health and safety. 452 U.S. at 298‑302. As the Hodel
Court stated, “[p]rotection
of the health and safety of the public is a paramount governmental interest
which justifies summary administrative action. Indeed, deprivation of
property to protect the public health and safety is one of the oldest examples
of permissible summary action.”
Id. at 300 (emphasis added) (citations omitted).

In Donovan v. Dewey, the
Supreme Court noted the importance of the Mine Act in particular as a statute
designed to protect public health and safety. In upholding the constitutionality
of the Act despite 4th Amendment challenges, the Court stated:

As an initial matter, it is undisputed
that there is a substantial federal interest in improving the health and safety
conditions in the Nation’s
underground and surface mines. In enacting the statute, Congress was plainly
aware that the mining industry is among the most hazardous in the country and
that the poor health and safety record of this industry has significant
deleterious effects on interstate commerce.

452 U.S. 594, 602 (1981) (relying on preamble to the Mine
Act) (footnote omitted). Donovan highlights the importance of the Mine
Act’s concern with
protecting the health and safety of miners working in an extremely dangerous
industry, and judicial evaluation of its provisions must be cognizant of that
goal.

The POV rule and the general
provisions of section 104(e) of the Act fit perfectly into the types of
governmental interests envisioned by Hodel. Like the immediate cessation
orders upheld in Hodel, 104(e) orders issued pursuant to a POV notice
are taken as an emergency measure to ensure miners are not in a dangerous part
of the mine until the dangerous condition has been abated. The provision is
only used in mines that have shown an egregious history of non‑compliance,
where similar but less stringent provisions of the Act have not been enough to
incentivize the operator to reduce their violation history.

In fact, the changes to the POV
rule are MSHA’s
response to the inadequacies of the prior rule and highlight the POV rule’s focus on the truly bad
actors that repeatedly allow dangerous working conditions to exist. Under the
old rule, high‑profile mine accidents took the lives of many miners, such as
the massive coal dust explosion that occurred on April 5, 2010 at the Upper Big
Branch mine in Montcoal, West Virginia. That accident killed 29 miners and
injured two. MSHA Report of Investigation at 1 (available at
www.msha.gov/Fatals/2010/UBB/

ExecutiveSummary.pdf). The mine is operated by Performance
Coal Company, a former subsidiary of Massey Energy Company, which had “avoided being placed on a
POV despite an egregious record of noncompliance.”
78 Fed. Reg. at 5057. The preamble to the new POV rule makes it clear that the
changes are aimed at ensuring the safety of miners, and shows that continuing
to wait for the PPOV process to unfold could very well place the health and
safety of miners at increased risk.

After balancing these three
factors, I find that the government’s
significant interest in the timely protection of public health and safety,
particularly in light of an operator’s
opportunity for expedited post‑deprivation review, justify the deprivation of
the small property interest associated with un‑interrupted mine production
prior to a hearing. I further find that the revised POV rule is valid, and that
it does not run afoul of the due process clause of the 5th Amendment to the
U.S. Constitution.

3. Notice-and-Comment Rulemaking
   Discussion

Section 553 of the APA generally
requires agencies to provide notice of proposed rulemakings for all rules. 5
U.S.C. § 553. A “rule” is defined in relevant part as “the whole or a part of an
agency statement of general or particular applicability and future effect
designed to implement, interpret, or prescribe law or policy or describing the
organization, procedure, or practice requirements of an agency . . .” 5 U.S.C. § 551(4). However, APA
section 553(b)(3)(A) specifically states that the notice‑and‑comment
requirements otherwise outlined in the section do not apply to “interpretative rules,
general statements of policy, or rules of agency organization, procedure, or
practice.” In this
instance, Brody argues that the POV screening criteria are legislative in
nature and do not fall into any of the stated exceptions. The Secretary argues
that the criteria are a general statement of agency policy, and thus, are valid
even though they were not promulgated in accordance with notice‑and‑comment
procedures.[6]

Legislative rules “implement congressional
intent; they effectuate statutory purposes. In doing so, they grant rights,
impose obligations, or produce other significant effects on private interests. They
also narrowly constrict the discretion of agency officials by largely
determining the issue addressed.”
Batterton v. Marshall, 648 F.2d 694, 701‑02 (D.C. Cir. 1980) (citations
omitted). The D.C. Circuit further elaborated in Dyer v. Sec’y of Health and Human
Services:

In order to determine whether a
particular statement is a binding rule or a general, non‑binding policy
statement, courts must examine both the language of the statement and the
purpose it serves. If a pronouncement implements a statute by enacting a
legislative‑type rule affecting individual rights and obligations, it is likely
to be a substantive rule. A statement is also likely to be considered binding
if it narrowly circumscribes administrative discretion in all future cases, and
if it finally and conclusively determines the issues to which it relates. A
policy statement is a pronouncement that simply advises the public what the
agency’s prospective
position on an issue is likely to be.

889 F.2d 682, 685 (D.C. Cir. 1989) (citations omitted). While
the Secretary’s
description of the type of rule he promulgated is afforded some weight, the more
significant factors by far are the language and actual effects of the agency
action. See Chamber of Commerce v. OSHA, 636 F.2d 464 (D.C. Cir. 1968); Brock
v. Cathedral Bluffs Shale Oil Co., 796 F.2d 533, 537‑38 (D.C. Cir. 1986). In
the context of the Secretary’s
rulemaking authority under the Mine Act specifically, the Commission discussed
the requirements for notice‑and‑comment rulemaking most thoroughly in Drummond
Co., 14 FMSHRC 661 (May 1992).

Drummond involved a
challenge to a Program Policy Letter, or “PPL,” issued by the Secretary
that set forth a system of proposing penalties known as the “excessive history program.” 14 FMSHRC at 661. The
Commission affirmed the Judge’s
ruling that the PPL was invalid because it was issued without having met the
notice‑and‑comment requirements of the APA. Id. In the Coal
Employment Project I litigation that took place prior to Drummond,
the D.C. Circuit Court found that the single penalty program portion of the
Secretary’s Part 100
penalty regulations was unreasonable because it failed to adequately consider
an operator’s history
of violations. See 14 FMSHRC at 665 (discussing Coal Employment
Project v. McLaughlin, 889 F.2d 1134 (D.C. Cir. 1989)). The court remanded
the case to MSHA with instructions to establish or amend their regulations to
clarify the issues of concern regarding the single penalty standard and an
operator’s history of
previous violations. 14 FMSHRC at 665. In addition, the court directed MSHA to
issue interim instructions until the new regulations were promulgated. Id.
at 665‑66. Accordingly, the Secretary published both new regulations and
interim PPLs that set up a method for assessment of penalties known as the “excessive history” program.

The issue in Drummond arose
when the Secretary filed a penalty petition against Drummond calculating the
proposed penalties according to the provisions of the PPL, which involved up to
a 30 percent increase for “excessive
history” based on the
methods in the PPL. 14 FMSHRC at 668‑669. The Judge in Drummond
first held that the PPL went beyond the scope of authority granted by the court’s interim mandate in Coal
Employment Project I. Further, the Judge held that the PPL was not
otherwise valid outside of the context of the interim mandate because it was a
substantive rule that had not been subject to the notice‑and‑comment process. 14
FMSHRC at 669‑70. Crucial to his analysis of the issue was the reduction or
elimination of agency discretion that the PPL created, which is a key element
of what makes an agency action substantive. Id. at 670.

The Commission affirmed the Judge’s decision, relying on Batterton
when determining whether the PPL was the type of administrative action that “carried the force of law” and thus, was a
legislative rule that should have been promulgated through notice‑and‑comment
rulemaking. Legislative rules “narrowly
constrict the discretion of agency officials by largely determining the issue
addressed,” whereas
interpretive, non‑binding rules “do
not . . . foreclose alternate courses of action or conclusively
affect rights of private parties.”
Further, non‑binding statements “carry
no more weight on judicial review than their inherent persuasiveness commands.” 14 FMSHRC at 684 (quoting Batterton
v. Marshall, 648 F.2d at 701‑02).

The Commission’s decision in Drummond
centered on the ways in which the PPL restricted the Secretary’s discretion and functioned
like an automatic rule, creating new legal consequences for mine operators. Specifically,
the PPL in Drummond restrained the Secretary’s discretion by subjecting all his penalty
proposals to a mathematical formula. 14 FMSHRC at 686. The impact of the rule
was substantive because all assessments with excessive history as
determined under the PPL were automatically increased by a factor of 18 percent
greater than would otherwise have been assessed under the previous method. Id.
In addition, the Judge hearing Drummond noted that although the penalty amounts
proposed by the Secretary were not final because the Commission assesses
penalties on a de novo basis, as a practical matter, the vast majority of
proposals were not contested and therefore had become final. Id. at 670.
The totality of these features of the PPL meant that it subjected operators to
new, substantive penalty rules that restrained the Secretary’s discretion such that they
should have been promulgated through notice‑and‑comment to be valid.

In its Motion for Summary Decision,
Brody argues that the criteria are legislative in nature and thus invalid
because they were not subject to notice-and-comment rulemaking; and that the
criteria are an important part of the new POV rule, particularly because in the
absence of the old PPOV process, they are the only means mine operators have to
monitor their performance and potential for facing liability. Brody Memo. in
Support of Mot. for Sum. Dec. at 9. Brody argues that because MSHA did not
include any specific numerical criteria in the rule itself, the published
criteria are all that give the parties ascertainable direction in the POV
process. Id. at 9-10.

Further, Brody argues that the
screening criteria fall squarely within the definition of legislative rules as
defined in Batterton because the criteria are what lead the Secretary to
consider a particular operator for a POV notice, and thus restrain the
discretion of the agency by narrowing the limits of who they consider for POV
status. According to Brody, the criteria form the basis for the evaluation of
whether a pattern exists, and MSHA applies the criteria across the board to all
operators “as if it
were the law.” Brody
Memo. in Support of Mot. for Sum. Dec. at 11-12. Brody also argues that the
criteria impinge significantly on private interests because they have the potential
to force mine closures and even lead to the shutdown of a mine. Id. at
14.

The Secretary argues that the
criteria are a statement of agency policy and thus, are not subject to the
notice‑and‑comment requirements of the APA. Sec’y
Memo. in Support of Mot. for Partial Sum. Dec. at 13. He states that Brody has
mischaracterized the criteria as limiting the agency’s discretion, and that the criteria merely set
forth some possible scenarios that may lead to a pattern notice. Id. at

14. The criteria do not create any sort of definitive norm, and so do not have
    the force of law. Id. at 15. As the Secretary describes it, the criteria
    “flag for MSHA those
    mines that should be subjected to further consideration to determine whether,
    in MSHA’s case‑specific
    and fact‑based judgment, they have indeed demonstrated a pattern of violations.
    The Secretary retains discretion to make the actual determination regarding
    whether a pattern notice is sent.”
    Id. at 14. The Secretary also notes that the criteria are designed to allow
    MSHA to change them in response to changing circumstances, and that because the
    agency expressly reserved the right to adjust the criteria as necessary, the
    publishing of the criteria “simply
    advises the public what the agency’s
    prospective position on an issue likely to be.”
    Id. at 15 (citing Dyer, 889 F.2d at 685).

While I believe that the Commission’s Drummond decision
is instructive in this case, I do not find that it compels me to find that the
POV screening criteria are invalid because they were subject to APA
notice-and-comment rulemaking requirement. To the contrary, I find that the
criteria are not legislative rules that required notice-and-comment.

In Drummond, the Commission
found the PPL to be so specific and universally applicable that it severely
limited MSHA’s
discretion; and further, that the PPL established “a binding norm”
and was “finally
determinative of the issues or rights to which it [was] addressed.” 14 FMSHRC at 670 (citation
omitted). The PPL imposed substantive increases in penalty proposals under a
system where such proposals would in all probability become final orders. 14
FMSHRC at 670, 686. The PPL set forth a system that was applied across the
board to all operators subject to penalty proposals, without any opportunity for
adjustments to account for particular circumstances or for the Secretary to
exercise prosecutorial discretion. Id. at 686-87.

In contrast, the criteria merely
serve as a “sieve” of sorts, to bring the
Secretary’s attention
to mines that should be investigated further to see if they have engaged in
what the Secretary believes could be a POV. The criteria do not attempt to
define what a “pattern” is for adjudicative
purposes. Further, the mitigating circumstances that MSHA must apply allow for
a significant degree of subjective judgment to be exercised. Thus, an operator
meeting the criteria is not subject to the same sort of automatic, across the
board actions being taken against all operators as was the case in Drummond.

Here, the POV rule operates in such
a manner that even after the issuance of a POV notice triggered in part by
application of the screening criteria, an operator is likely to contest section
104(e) orders issued pursuant to a POV notice, giving the Commission the independent
opportunity to determine whether a “pattern” has been established. The
screening criteria do not operate to provide finality in a sense that is
remotely close to the “excessive
history” provisions in
the Drummond PPL.

Although the criteria provide
guidance to operators as to whether they are at risk for being placed on POV
status, the ultimate decision of whether an operator is issued a POV notice
still lies with the Secretary, who must still prove in a de novo proceeding
before the Commission the validity of any enforcement actions taken under a POV
notice. The criteria simply do not sufficiently restrict the Secretary’s discretion to constitute
a legislative rule. I thus find that the criteria are a valid statement of agency
policy which can be used by the Secretary as a prosecutorial tool without being
subject to notice‑and‑comment rulemaking.[7]

4. Retroactivity Analysis

As a general rule, laws are
presumed not to have retroactive effect absent express Congressional authority.
Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988). However, the
Supreme Court has since held that “[a]
statute does not operate >retrospectively’ merely because it is
applied in a case arising from conduct antedating the statute’s enactment, or upsets
expectations in prior law. Rather, the court must ask whether the new provision
attaches new legal consequences to events completed before its enactment.” Landgraf v. USI Film
Prods., 511 U.S. 244, 269‑70 (1994). Specifically, “a provision operates retroactively when it
impairs rights a party possessed when he acted, increases a party’s liability for past
conduct, or imposes new duties with respect to transactions already completed.” Nat’l Mining Ass’n v. Dept. of Labor,
292 F.3d 849, 859 (D.C. Cir. 2002) (quoting Landgraf, 511 U.S. at 280).

In its 2002 National Mining
Association decision, the D.C. Circuit invalidated some of the Department
of Labor’s rules
promulgated pursuant to the Black Lung Benefits Act on retroactivity grounds. See
generally Nat’l
Mining Ass’n v.
Dept. of Labor, 292 F.3d 849 (D.C. Cir. 2002). The court went through a
detailed analysis of each regulation, comparing the expectations of regulated
parties before and after the regulation took effect B what it referred to as the “legal landscape.” Id. The court found
that the regulations at issue amounted to a change in the legal landscape and
were impermissibly retroactive when they served to limit how an adjudicator
decided a case before him or her or attempted to bind all courts to the ruling
of one circuit. Id. at 861‑68. However, when the changes constituted a
clarification of a statutory term or initiated a change in procedures, there
were no retroactivity problems. Id. The D.C. Circuit’s analysis in National
Mining Ass’n
demonstrates that the evaluation of whether a rule operates retroactively is
circumstantial and fact‑based, and must account for the specific changes to the
legal landscape and the particular expectations of regulated parties.

While agreeing with the general
legal propositions above, the Secretary argues that the changes to the POV
rules at issue are more procedural in nature, and thus, that Brody’s liabilities have not
changed and the rule has not been applied in an impermissibly retroactive
manner. In Landgraf, the Court noted the diminished reliance interests
in procedural matters, and that generally, application of a new procedure to
past conduct was not impermissibly retroactive. 511 U.S. at 275. However, “[w]here a >procedural’ rule changes the legal
landscape in a way that affects substantive liability determinations,
. . . it may operate retroactively.”
Nat’l Mining
Ass’n, 292
F.3d at 859 (citing Martin v. Hadix, 527 U.S. 343, 359 (1999)).

Thus, the key inquiry in determining
whether the POV rule has been applied in an impermissibly retroactive fashion
is whether the March 2013 changes to the POV rule amount to a “change in the legal
landscape” that goes
beyond procedural changes to alter the legal consequences that Brody faces for
conduct prior to March 25, 2013, the effective date of the new rule. As Landgraf
instructs, “[t]he
conclusion that a particular rule operates >retroactively’ comes at the end of a
process of judgment concerning the nature and extent of the change in the law
and the degree of connection between the operation of the new rule and a
relevant past event.” 511
U.S. at 270. This requires analysis of the circumstances and operation of both
POV rules, with regard to “familiar
considerations of fair notice, reasonable reliance, and settled expectations.” Id.

In enacting the new POV rule, MSHA
made several changes from the old rule, and the nature and extent of those
changes are instructive as to whether MSHA impermissibly applied the revised
POV rule retroactively. First, the new rule eliminates the practice of issuing
a PPOV notice prior to the issuance of a formal POV notice that carries the
full consequences set forth in section 104(e) of the Act. Brody argues that
this is significant because the PPOV system put operators on notice that they
could be considered for a POV notice in the future, and allowed them the
opportunity to develop a Corrective Action Plan in order to curb their rate of
issuances before being faced with the consequences of operating under a pattern
notice.

Although the POV screening criteria
remain largely the same, the new POV rule eliminates the final order
requirement of the old rule and relies on non‑final orders. Specifically, the
2012 Pattern Screening Criteria provision that the new rule drops stated: “For a pattern of violations
review, mines identified during the initial screening must have at least five
S&S citations of the same standard that became final orders of the
commission during the most recent 12 months OR at least two S&S
unwarrantable failure violations that became final orders of the
commission during the most recent 12 months.”
Sec’y Memo. in Support
of Mot. for Partial Sum. Dec. at Ex. 2 (emphasis in original).

Finally, the new rule states that
specific screening criteria will be publicly posted on MSHA’s website, which was not a
feature of the old POV rule. Compare Id. at Ex. 2 with Id.
at Ex. 3. Although the new POV rule explicitly refers to the publication of the
criteria on MSHA’s
website, the agency had provided an online “Monthly
Monitoring Tool” under
the old regulation as well, so operators have had online notice of their status
under POV screening criteria for the past few years. See 78 Fed. Reg. at
5059. As noted above, the criteria displayed online have remained the same
except for the final order requirement.

Brody argues that the elimination
of the PPOV and final order requirements amount to a substantive change in the
POV criteria, and that these shifts alter the legal landscape today from that
faced by Brody in the fall of 2012. Brody maintains that, if MSHA were to apply
the new POV rule prospectively, it would no longer meet the screening criteria.
In making this argument, Brody submits that the citations per inspection hour
calculations that are required under the screening criteria would yield a
result lower than the required threshold if only violations from after March
25, 2013 were used. Brody Memo. in Support of Mot. Sum. Dec. at 26; See
Joint Stip. 23, 24. However, this particular portion of the screening criteria
has remained the same between the 2012 and 2013 criteria, and both sets of
screening criteria have always used data over 12 month time periods. Brody has
known since the issuance of the 2012 screening criteria that the relevant
citations per inspection hours calculations would be taken using data that
covered an entire year, based on the date MSHA chose to run its screening
criteria. That this statistic changes from quarter to quarter, and has
sometimes dropped below the required threshold for periods shorter than one
year, does not entitle Brody to reconsideration on retroactivity grounds
because other changes to the rule have been made. Rather, the rule is only
applied in an impermissibly retroactive fashion if the changes to the legal
landscape have altered Brody's liabilities.

In arguing that the POV rule has
not been applied in an impermissibly retroactive fashion, the Secretary argues
that the rule does not upset expectations because the subject violations were
illegal under the old rule and are illegal now. Sec’y Memo. in Support of Mot. for Partial Sum.
Dec. at 17. There is no notice or fairness problem because Brody knew “that certain conduct could
constitute an S&S violation and that a pattern of S&S violations could
subject it to POV sanctions.”
Id. The Secretary argues that Brody is “>unable to point to
anything [it] would have done differently had [it] known the effect of the’ POV rule when it engaged
in its pre‑POV rule conduct.”
Id. (citing Tarver v. Shineski, 557 F. 3d 1371, 1375 (Fed. Cir.
2009)).

In considering the issue of
retroactivity with respect Brody’s
mining operation, I find that nothing about the changes to the POV rule were so
drastic as to impose new sanctions on previous conduct or interfere with
notions of reasonable reliance. The types of citations and the numerical rates
that trigger further consideration for a POV have remained largely the same
under both rules. Thus, Brody has always been on notice that their high rate of
S&S issuances had the potential to subject them to a POV notice. Specifically,
Brody has had access to the numerical screening criteria, and has known that
based on the criteria, they were getting close to POV status during several
parts of 2012 and 2013. In fact, Brody was issued a PPOV notice on March 1,
2013, which indicates that even under the old rule, Brody had exhibited a
history of S&S violations that they knew put them in danger of a POV
notice.[8] Brody had
also implemented a CAP under the previous POV rule, which did not work to the
degree necessary to reduce issuances of S&S violations at its mine. Sec’y Memo. in Support of Mot.
for Partial Sum. Dec. at 10 (citing Sec’y
Opp. to Mot. for Temp. Relief at Exhibit A, page 10).

While the PPOV system did provide
an extra procedural step to operators, I find that its elimination is a
procedural change that does not change substantive liability determinations
with regard to a POV notice. Under the 2013 POV rule, operators still have
access to the screening criteria to get a sense of whether they are close to a
POV notice, and, upon determining that they are at risk, have the opportunity
to present evidence of mitigating circumstances to MSHA at any time, including
implementation of a Corrective Action Plan if they so choose. Under the 2012
rule, operators similarly had access to the screening criteria and could
present mitigating circumstances, but also had a more formal review period in
which to lower their rate of S&S issuances. Generally, elimination of the
PPOV and the operator’s
subsequent ability to present mitigating evidence has been replaced by guidance
in the form of public screening criteria and the availability of a
self-monitoring web based tool, as well as the operator’s ability to present mitigating evidence at
any time. 78 Fed. Reg. 5059, 5063. Taken together, these two aspects of the rule provide the
operator similar opportunities to anticipate and avoid a pattern notice, so
nothing about the “legal landscape” surrounding the POV process has changed in any substantive
way. The change merely shifts the primary responsibility for monitoring for
potential POV status from MSHA to the operator, and does not substantially
change the conduct triggering a POV notice or the pre‑notice opportunities for
operators to change their violation history.

Thus, the
record indicates that Brody cannot point to anything they would have done
differently if they knew non‑final violations would be included in the POV
calculus or that the PPOV notices would cease being issued. I conclude that the
changes between the old and new rules have little if any impact on this case
and do not alter the legal landscape in such a way that Brody would have lacked
notice that their prior conduct was likely to lead to a POV status. Accordingly,
I reject Brody’s arguments as to retroactivity,
and find that the Secretary may use evidence of all violations listed in the
pattern notice as evidence that a pattern of violations exists at Brody’s Mine No. 1.

CONCLUSION

On the
cross motions for summary decision before me, the dispositive issue is whether
the Secretary's revised rule implementing section 104(e) of the Mine Act is a
rule of binding effect subject to the notice‑and‑comment requirements of the
APA, or a policy set forth in a rule that does not bind but rather assists the
Secretary in the exercise of his prosecutorial discretion. I find the latter to
be the case.

The
Secretary has established that his revised POV rule is a prosecutorial tool he
has used to identify Brody Mining, LLC as an operator critically in need of
improvement in its approach to ensuring the health and safety of its miners. When
the Secretary applied his new POV rule to Brody’s
history of S&S violations, he acted with deliberation and exercised his
judgment to determine that Brody, among several thousand mine operators
operating under the Mine Act, was one of but a few operators he deemed most at
risk of having recurring problems arise at their mine that would affect the
health and safety of miners.

I find
Brody’s plea to have the Commission remove this tool from the
Secretary’s hands as unavailing as it is ill‑advised. I find none of
the company’s arguments persuasive. The revised POV rule is wholly
consistent with the statutory provision it implements. The rule was properly
promulgated. The Secretary’s actions have not deprived
Brody of due process B in fact, Brody has already
availed itself of several opportunities before the Commission to obtain
immediate relief.[9] In
addition, the rule was properly applied to Brody under the circumstances
presented in these proceedings thus far. It remains for the Secretary to prove
that the violations that served as the basis for the POV notice did, in fact,
constitute a “pattern” of S&S violations; and if so, that he had a valid
basis for all of the subsequent enforcement actions he took based on the POV
notice.

WHEREFORE, the Motion for Summary Decision of Brody Mining LLC is DENIED,
and the Motion for Summary Decision of the Secretary of Labor is GRANTED.

/s/
Robert J. Lesnick

Robert
J. Lesnick

Chief
Administrative Law Judge

Distribution:

R. Henry Moore, Esq., Jackson
Kelly, PLLC, Three Gateway Center, Suite 1340, 401 Liberty Avenue, Pittsburgh,
PA 15222

[email protected]

Michael T. Cimino, Esq., Jackson
Kelly, PLLC, 1600 Laidley Tower, P.O. Box 553 Charleston, WV 25322

[email protected]

Benjamin M. McFarlane, Esq.,
Jackson Kelly, PLLC, 1144 Market Street, Wheeling, WV 26003

[email protected]

Robert S. Wilson, Esq., Office of
the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd., 22 Floor West,
Arlington, VA 22209‑3939

[email protected]

Jason Grover, Esq., Office of the
Solicitor, U.S. Department of Labor, 1100 Wilson Blvd., Room 2226, Arlington,
VA 22209‑2296

[email protected]

[1]
These proceedings, which I hereby consolidate under Rule 12 of the Commission’s Procedural Rules, 29
C.F.R. § 2700.12,
were originally assigned to Commission Administrative Law Judge William Steele.
When Judge Steele recently announced his intention to retire, the proceedings
were reassigned to me by order of January 10, 2014.

[2]
I note that, in these proceedings, Brody filed an Application for Temporary
Relief on November 4, 2013 (eleven days after it was issued a POV notice on
October 24), which was argued before Judge Steele on November 8, 2013. Brody’s Application was denied on
November 21, 2013. A hearing was set for December 3, 2013 on several of the
violations that served as the basis for the POV notice, but the hearing was
continued on December 1, 2013 after Brody filed its Motion for Summary Decision
on November 27, 2013 (the day before the Thanksgiving holiday). This was done
to allow the Secretary to respond to Brody’s
motion, and provide the Commission the opportunity to consider and rule on the
parties’ dispositive
motions.

[3]
The S&S terminology is taken from section 104(d)(1) of the Act, 30 U.S.C. § 814(d)(1), which
distinguishes as more serious any violation that “could
significantly and substantially contribute to the cause and effect of a . . .
mine safety or health hazard.”

[4]
Both the Secretary and Brody have submitted for my consideration briefs filed
in the U.S. Court of Appeals for the 6th Circuit in the matter Nat’l Mining Ass’n v. MSHA, Case No.
13-3324. The Secretary’s
briefs were filed in the 6th Circuit on behalf of MSHA. The briefs on which
Brody relies were filed on behalf of the National Mining Association (NMA) by
counsel that are not of record in the instant proceeding, though the NMA briefs
were incorporated by reference in Brody’s
filings. Broday has since indicated that it adopts some, but not all, of the
NMA’s arguments made
to the 6th Circuit. I have not considered any arguments not specifically
adopted. Hereafter, arguments are to be made to me by counsel of record in this
proceeding.

[5]
Rule 56(a) of the Federal Rules of Civil Procedure provides for the filing of
motions for summary judgment and states that: “The
court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to a judgment as a
matter of law.” Fed.
R. Civ. P. 56(a).

[6]
The APA also allows for a “good
cause” exception to
notice‑and‑comment requirements, 5 U.S.C. § 553(b)(3)(B),
but the Secretary does not argue that the screening criteria fall under this
exception.

[7]
My finding is consistent with the finding of another Commission Judge who
considered the same question under the old POV rule. See Bledsoe Coal Corp.,
34 FMSHRC 1136, 1155‑58 (May 2012) (ALJ). I also note that although Brody
argues that, even if the criteria are valid, MSHA did not follow its own stated
standards correctly when choosing to issue a POV notice to Brody, in order to
prevail on this argument, MSHA would have to be bound by the screening criteria
in the same way they are bound by statutes and regulations. The agency is not
so bound.

[8]
Although neither party mentions Brody’s
PPOV notice in its brief, I take judicial notice of this fact based on Patriot
Coal’s March 2013 SEC filing.
Patriot Coal Co., Current Report (Form 8‑K), (Mar. 7, 2013), available at:

http://www.sec.gov/Archives/edgar/data/1376812/000119312513096304/d497205d8k.htm

A court may
take judicial notice on its own, at any stage of the proceeding, of facts that
can be accurately and readily determined from sources whose accuracy cannot
reasonably be questioned. Fed. R. Evid. 201.

[9]
See, supra note 2.